‘Why would a ski area sell off water rights?’ — U.S. District Judge William Martinez

Oral arguments in the lawsuit brought by the National Ski Areas Association against new permit requirements from the U.S. Forest Service were heard on Thursday. Here’s a report from Jason Blevins writing for The Denver Post. From the article:

On Thursday, U.S. District Judge William Martinez entertained oral arguments from both sides in a case that could decide the fate of hundreds of millions of dollars worth of ski-area water rights. Citing 140 years of federal laws and court decisions, NSAA lawyer Zeke Williams argued the agency overstepped its authority with the new directive, which he called a “sea change in agency law.”

“The agency can point to no statute that authorizes it to condition use and occupancy permits on the permit holder assigning to the Forest Service property that is not federal property,” Williams said.

The Forest Service says it changed the law to prevent ski areas from selling water rights connected to federal land…

“Why would a ski area sell off water rights and leave itself with insufficient water to operate a ski area?” he said. “Then you are not a ski area anymore.”

Williams argued that the Forest Service rule was a “draconian and punitive solution to a hypothetical problem.”[…]

Williams on Thursday argued that the agency violated the Federal Administrative Procedural Act by not offering legal support for the rule and not soliciting public input on the new rule…

“In the history of this policy, it is very clear that we are not deviating from the overall history of the policy,” Samford said. “If you have a federal permit on federal land and you want water rights in service of that permit you need to claim them in the name of the United States.”